Re: [ga] WLS Suggestion

[DannyYounger@cs.com]

Karl,

In his preliminary report on WLS, our General Counsel identified a primary 
concern -- the potential for various types of harm to the legitimate 
interests of others.   We are obligated to abide by the terms of the MoU 
which state:  "Neither Party, either in the DNS Project or in any act related 
to the DNS Project, shall act unjustifiably or arbitrarily to injure 
particular persons or entities or particular categories of persons or 
entities."

Counsel recommended a preliminary "quick-look" evaluation to determine 
whether it was plausible that the legitimate interests of others could be 
harmed by the proposed amendment, and ultimately if such a determination was 
made, that ICANN should invoke the formal consensus development mechanisms 
that currently exist prior to any decision by the ICANN Board.

So, as a matter of policy, we need to determine first whether the proposal 
will in fact will injure others, and secondly whether such injury is 
justifiable and non-arbitrary.  The DNSO report did not determine that the 
WLS proposal would in fact injure others, nor did it examine whether such 
injury might be justifiable or non-arbitrary.  In short, it failed to examine 
the relevant policy issue.

I don't believe that it would be "fair" to either party in this debate to 
proceed without the benefit of such an examination (as our primary obligation 
should be to respect the MoU).  

The Board may reject a recommendation if it was not arrived at through fair 
processes (Article VI, section 2, paragraph (e)(3)).  Further, "If the Board 
declines to accept any recommendation of a Supporting Organization, it shall 
return the recommendation to the Supporting Organization for further 
consideration, along with a statement of the reasons it declines to accept 
the recommendation".  

To my mind the question is:  Can we allow ourselves to potentially harm 
others without having thoroughly examined the potential harm and whether it 
might be justified?  As a matter of policy, a certain amount of due diligence 
is required... in this particular case, I don't think that our duty has been 
performed (I see no evidence of a Task Force evaluation attending to this 
concern).  I would recommend tossing this back into the lap of the DNSO and 
asking them to do a better job of it on the next go-around.  

 
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